Con-Court legal vacuum hinders CJ case

HARARE – Zimbabwe’s Constitutional Court (Con-Court) is grappling with a
legal vacuum because it does not have a quorum of at least nine judges, as
required by the Constitution, to hear a contentious challenge to the
selection process of a new Chief Justice (CJ).

The crisis was precipitated by University of Zimbabwe law student Romeo
Zibani’s challenge of the temporary appointment of retired Justice
Vernanda Ziyambi to constitute a panel of Supreme Court judges that heard
his challenge against the selection of a new CJ to replace the retired
Godfrey Chidyausiku.

This came after five Supreme Court judges recused themselves from an
appeal hearing in which the Judicial Service Commission (JSC) had opposed
High Court judge Charles Hungwe’s interim interdict preventing it from
conducting public interviews of candidates for the CJ job, after calls
that President Robert Mugabe unilaterally appoint.

On the eve of the interviews on December 11, Justice Hungwe ruled that the
interviews should not be held.

Only three candidates – Supreme Court and Constitutional Court judge
Paddington Garwe, Zimbabwe Electoral Commission chairperson and JSC
secretary Rita Makarau and now acting Chief Justice Malaba – were
interviewed while the fourth, Judge President Justice George Chiweshe, did
not appear.

A three-judge bench of the Supreme Court on February 13 heard the JSC’s
appeal against Judge Hungwe’s judgment and unanimously set aside the
order.

On February 22, Zibani applied to the Con-Court for an order setting aside
the Supreme Court’s judgment on the grounds that the appointment of
retired Judge Ziyambi to preside in the appeal was unconstitutional.

Zibani argued it was impossible under the Rules of the Con-Court for there
to be any hearing or decision on his challenge because the Con-Court’s
quorum was reduced to two from three that a Supreme Court hearing
requires.

In his notice of motion on Tuesday, Justice minister and Vice President
Emmerson Mnangagwa, also requested that the decision by the Con-Court be
rescinded and set aside on the grounds that it was granted erroneously.

His argument now is that the Con-Court was “incapacitated” from hearing
the matter because of conflicts disabling its members from sitting, and
also set out the specific grounds of the disablement – that retired
Justice Ziyambi did not take her judicial oath.

“The peremptory provisions of Section 185 (2) of the Constitution require
that a judge takes the oath of office upon appointment. My belief is
premised on the fact that the letter of appointment of the fourth
respondent (Zyambi), which I also received, makes no mention of that
issue,” argued Mnangagwa.

Chidyausiku disputed Mnangagwa’s argument, saying the “correct legal
position is at variance with the averments” made by the VP.

After the recusal of the five judges from the Constitutional Court, the
three judges did not hold plenary sessions, as there was no quorum
required for this.

It is in the plenary, according to the Rules of Court, that decisions or
judgments are made.

Alex Magaisa, a law professor at the Kent Law School in the UK, said it
was curious that so many judges recused themselves to the point that the
recently retired Justice Ziyambi had to be recalled to the bench to make
up the quorum.

“One must hope that judges did not take the easy but cowardly route of
avoiding a difficult case or worse, that there was no undue influence or
pressure on judges leading to mass recusals,” the former advisor to
ex-Prime Minister Morgan Tsvangirai said.

“They deprived themselves of an opportunity to write solid judgments in a
matter of great legal significance in which the integrity of the
Constitution was at stake.”

Veritas, a legal and parliamentary watchdog, noted that it was now
impossible to meet the Con-Court bench quorum of nine judges to hear
Zibani’s case as some of the law lords are part of the candidates running
for CJ.

“None of the judges who are parties to the case – the (now former) chief
justice and the candidates for his vacant post – will be able to sit, nor
will the judges who recused themselves from the appeal,” Veritas said.

It is not clear why the five judges recused themselves from the
factionally-charged CJ succession row, although some speculate that they
were vaccinating themselves from being subject to intimidation; and that
they feared their constitutional guarantees of independence and immunity
could be violated by threats of dismissal and indictment if they heard the
case.

The CJ job – besides overseeing the Con-Court and Supreme Court’s
administration and lobbying on the top courts’ behalf on matters involving
its docket and jurisdiction – also has a political nature, and has a key
role in presidential impeachment motions and elections, which are often
disputed here, hence the intense factional fights.

Mnangagwa and his Team Lacoste Zanu PF faction are keen to have Chiweshe
take over from Chidyausiku, while the camp led by First Lady Grace Mugabe
wants Justice Makarau.